DNR settles lawsuit

[Lee Borgersen]

  DNR settles lawsuit over White Bear Lake water levels

(Released December 1, 2014)
 
 
The Minnesota Department of Natural Resources recently settled a lawsuit through mediation with plaintiffs over White Bear Lake water levels.

View the White Bear Lake lawsuit settlement. ....

 

Here are some questions and answers regarding the settlement and the agency’s ongoing efforts to advance long-term groundwater sustainability in the northeast Twin Cities metropolitan area.

Q: What is the background on this lawsuit?
A: In the past several years, White Bear Lake’s water levels have been at the lower end of their historic range. Experts disagree about the fundamental causes of the low levels. The DNR was sued in Ramsey County District Court in 2012, with the plaintiffs claiming that, by allowing 13 local communities to use groundwater for their public water supply, the DNR has permitted too much groundwater use in the area, thus lowering White Bear Lake. The plaintiffs asked the judge to set a lake water elevation, reduce local communities’ groundwater use, and require the agency to augment the lake with an additional water supply.

Q:  What are the key aspects of the settlement?
A: The settlement, which is subject to court approval, halts the litigation up to three years. During this time, the DNR and the two local communities involved in the mediation have agreed to support efforts to develop a surface water supply to serve area communities. The DNR has also agreed to set a protective elevation for White Bear Lake by Nov. 1, 2016.  Finally, all parties to the settlement have agreed to pursue conservation measures.

Q:  What is envisioned for the alternative water supply?
A:  The DNR has agreed to support a two phased option identified in the Met Council’s June 2014 Draft Water Feasibility Report to move 13 communities from groundwater and to surface water from the Mississippi River for their public water supply. The first phase of the project (Phase I) would move six communities – Mahtomedi, North Saint Paul, Shoreview, Vadnais Heights, White Bear Lake, and White Bear Township – to a surface water supply system.  The Phase I project would cost an estimated $155 million to $230 million. The DNR agreed to support a legislative proposal advanced by a public entity to fully fund the feasibility and design of Phase I by August 2016. Under the settlement agreement, the target for full construction funding is August 2017.  The DNR also agreed to support Phase II and to work with seven additional communities in the northeast metro to move these communities to surface water.  There are no timelines set out in the settlement agreement for this Phase II work.

Q: What does the settlement mean to lake levels?
A: White Bear Lake’s levels are driven by complex and interconnected factors. The DNR cannot guarantee when and how lake levels will respond to implementation of the various settlement terms.  However, we are confident that the settlement is fundamentally based on sound water resource management principles.

Q:  Does the settlement commit the Met Council or the Legislature to fund or implement the water supply project?
A: No. The settlement is an agreement among the parties to the litigation and is not binding on any other party.  As the lead for water supply planning in the Twin Cities, the Met Council has examined alternatives to addressing northeast metro water needs. The DNR and the other parties carefully considered the Met Council’s draft June 2014 report in developing the settlement agreement, but the Council is not party to the settlement and is not committed to advancing any legislative proposal.  Additionally, the DNR and the other parties to the settlement certainly cannot obligate the Legislature. Rather, the settlement agreement is an opportunity to halt the litigation for three years, allowing time for appropriate legislative consideration and debate.

Q: Does the settlement force communities to switch their water source?
A: No. In reaching the settlement, the DNR weighed long-term regional water needs, the risks of further litigation, and the need to ensure water sustainability for the region. The settlement was crafted with direct involvement from the two of the 13 local communities that elected to participate in the litigation. In order for any water supply proposal to go forward, the project would need legislative approval and an equitable funding mechanism.

Q: What are the required conservation measures under the settlement?
A: The DNR will work with groundwater permit holders within local 13 communities to adopt water conservation measures, with a goal of a 17 percent reduction in water use. This reduction would be measured against average water use over the past eight years. The plaintiffs will work with their membership and other residents who have private wells near the lake to adopt conservation measures. All parties agree to a consumption goal of 75 gallons per person per day, consistent with the Met Council’s target for the Twin Cities area.

Q: Who signed the settlement and how was it settled?
A: All parties to the litigation have signed the agreement. This includes, the DNR, the two plaintiff groups (White Bear Lake Restoration Association and White Bear Lake Homeowners’ Association), and the two communities that elected to intervene in the litigation (City of White Bear Lake and White Bear Township). The settlement was mediated by retired Minnesota Supreme Court associate justice James H. Gilbert and negotiations began in February 2014. The case was scheduled for trial in March 2015.

Q: Does setting a protective lake elevation impact current groundwater permit holders in the region?
A: Under state statute and rule, protective elevations are a tool available to DNR to ensure that appropriations do not unduly affect surface waters.  Where a protective elevation for a surface water body is established and incorporated into a surface water permit, the surface water appropriation must cease when the water body falls below that elevation.

In the case of a permitted groundwater appropriation potentially affecting a surface water with a protective elevation, the situation is more complex.  The DNR would first have to establish that the groundwater appropriation was causing the water body to fall below its protective elevation prior to ordering cessation of pumping.  The complexity of surface-groundwater interactions could make such a clear causal connection difficult to draw.

In this settlement, the DNR has agreed to set a protective lake elevation that will be used to regulate new groundwater permits or amendments to existing permits.  The DNR would not be obligated to apply the protective elevation prior to completion of the Phase 1 water supply project.  After completion of Phase 1, there is also an exemption if the DNR commissioner determines that application would be unduly deleterious to public water supply.  Moreover, the DNR has not agreed to establish a specific protective elevation for White Bear Lake.  The protective elevation will be developed and applied in accordance with state statute and rule.

Q: Does the settlement mean the DNR agrees with plaintiffs over the cause of the low water levels on White Bear Lake?
A: No. The DNR does not agree the science supports the plaintiffs’ theory that groundwater pumping is the primary cause of low water levels on White Bear Lake. The state’s independent expert, a nationally recognized hydrogeologist, has concluded that the cause of the lake’s decline in recent years is likely climate related.  In addition, it is important to understand that variation in lake levels over time is important to lake health. However, the DNR does believe that groundwater resources in the north and east metro region may be oversubscribed in the future.  Thus, it makes sense to act now to move communities to a more sustainable water supply system that can better accommodate future growth.

Q:  Did the judge ever make a factual determination on the cause of the recent low lake levels?
A. No. Because this case did not go to trial, the judge has not heard or evaluated expert testimony and has made no factual determination regarding the cause of the low lake levels.  At this point neither party has proved the cause of the low lake levels.

Q: What else is the DNR doing to ensure groundwater sustainability in the northeast metropolitan area?
A: For the past year, the agency has been working with northeast communities, businesses and other government agencies to develop a North and East Metro Groundwater Management Area, which will result in a long-term plan for  managing regional groundwater resources sustainably. That process, which is separate from the lawsuit, is ongoing and continues to be a high priority for the agency. As part of the settlement to the lawsuit, the DNR will appoint a member from each of the two plaintiffs’ groups to the management area advisory team.